By Burt Rose
The Superior Court of Pennsylvania en banc has decided the appeal in COMMONWEALTH of Pennsylvania, Appellant, v. Darius PETERSON, Appellee, 2011 WL 1662931, 2011 PA Super 92, No. 120 EDA 2009 (May 4, 2011), an appeal from an Order entered in the Court of Common Pleas of Philadelphia County, Criminal Division, No. CP–51–CR–0009214–2008. The case was before Judges FORD ELLIOTT, MUSMANNO, BENDER, BOWES, DONOHUE, SHOGAN, ALLEN, OLSON, and OTT. Judge Bowes wrote the Opinion.
This was a Commonwealth appeal from an order granting the motion of Appellee, Darius Peterson, pursuant to Pa.R.Crim.P. 600. The Commonwealth’s sole contention on appeal was that the trial court erred in dismissing the charges under Rule 600 by using the original run date instead of the date of the second Complaint.
The trial court must first determine whether the Commonwealth intended to evade Rule 600’s timeliness requirements by withdrawing or having nolle prossed the original charges. If the prosecution attempted to circumvent Rule 600, then the mechanical run date starts from the filing of the initial complaint, and the time between the dismissal of one complaint and the re-filing of the second complaint is counted against the Commonwealth. However, where the prosecution has not attempted to end run around the rule, and a competent authority has properly dismissed the case, the court must decide if the Commonwealth was duly diligent in its prosecution of the matter. Where the prosecution was diligent, the inquiry ends and the appropriate run date for purposes of Rule 600 begins when the Commonwealth files the subsequent complaint.
Even where the Commonwealth does not intend to circumvent Rule 600, the Commonwealth must demonstrate that it proceeded diligently in prosecuting the original case in order to receive the benefit of the run date commencing from the filing of the second complaint. While the Commonwealth must exercise due diligence before the withdrawal of an original complaint, there is no duty of due diligence after the dismissal of a complaint, when no prosecution is pending. Also, the Court ruled that the Commonwealth has carried its burden of proving that it acts with due diligence when a police officer fails to appear at a scheduled preliminary hearing, as the DA does not have control over police schedules.